The Constitution and the President’s DOMA Directive

President Obama’s newly announced policy regarding the Defense of Marriage Act has come in for some well deserved criticism.  Nevertheless, it is worth pointing out that it does have a couple of beneficial, though surely unintended, side-effects.  Before going any further let me be clear on the following crucial points: the President is wrong about marriage, which really is a union of a man and a woman, and is wrong about the constitutionality of DOMA, which is beyond serious question.   But the way in which he has asserted his mistaken understanding of these matters helpfully explodes a myth about the Constitution that obscures a proper understanding of presidential power.

I have in mind here the myth of the special status of, or independence of, the Department of Justice.  Notice that the letter released by Attorney General Eric Holder last week says that the President has “instructed” the Justice Department no longer to defend the constitutionality of DOMA in federal courts.  But wait!  Earlier in the administration, when Holder announced a decision to try terror suspects in civilian courts, the question was raised: did the President sign off on this decision?  On that question Holder was rather evasive, saying only that he had informed the President of his decision.  Then came a chorus in defense of Holder, and seeking to protect the President from the political unpopularity of that decision: the President could not properly “interfere” with the decisions of the Attorney General or the operations of the Justice Department.  The same thing was said even earlier when Holder announced investigations of CIA officials who had, during the Bush administration, carried on enhanced interrogations that they had thought lawful at the time.  The President, the claim went, could not properly call a halt to such investigations, because that would amount to an improper tampering with the work of the DOJ.

All of this is bad and erroneous constitutional theory, invented largely by liberals for political purposes.  The President is the head of the executive branch of government.  The Justice Department is a part of the executive branch of government.  Therefore the President has a right to control the discretionary operations of the Justice Department as much as he has the right in relation to any other executive branch department.  Sometimes it is said, in defense of the supposed special status of DOJ, that the Attorney General is the nation’s chief law enforcement official.  But this is wrong.  The President is the nation’s chief law enforcement official, and he has every right to order his subordinates at the DOJ to carry out the policies upon which he settles.

The idea that the President may not interfere with the work of the DOJ was first invented, to my knowledge, in order to criticize President Nixon for his efforts to impede the Watergate investigation.   Then his firing of the Watergate special prosecutor and other high ranking DOJ officials was presented as a “constitutional crisis.”  But it was not.  It was, to be sure, a corrupt and self-seeking act, but nevertheless perfectly within his constitutional powers as President.  If he exercised those powers for bad reasons, the proper course was to criticize him (and perhaps even impeach him and remove him from office) on that basis — but not to deny the existence of the power itself.

Something similar happened during the Bush II administration.  George W. Bush accepted some interpretations of law submitted to him by government lawyers other than those in the Justice Department Office of Legal Counsel.  For this some liberal commentators acted as if he had somehow violated the law or the constitution.  But this is silly.  The Office of Legal Counsel exists to advise the President on the meaning of the law and the constitution, but in the end he has to make his own decisions on those weighty questions.  If he is wrong it is because he is wrong on the merits, not because the Justice Department has some kind of authority over him.  Similarly, liberals complained about decisions to fire some U.S. Attorneys during the recent Bush administration, again acting as if the President should somehow have no say in who in the Justice Department gets to keep his or her job.  But without the power to fire executive branch officers who do not implement the President’s directives, how can the President reasonably be held accountable for the conduct of his office?

Again, this is a bogus account of Presidential power that has been concocted primarily for political reasons — as a tool by which to criticize Republican presidents and insulate Democratic presidents from criticism.  We can, then, at least be grateful that President Obama’s decision last week — a decision by which he asserted presidential authority over DOJ — repudiates this theory in a public manner that should not be forgotten and that we should not let be forgotten.  For President Obama, like any president, should be held accountable for all the actions of the Justice Department, for which he really is ultimately responsible.  And, looking forward, we should expect any conservative president in the future to exert a similar authority over the Justice Department, establishing its policies in accordance with his own principles and those of the movement that will have elected him.

The DOMA directive also undermines another myth about the Constitution — the myth of judicial supremacy.   I will discuss that issue in a subsequent post.





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